Cablegate: Data Privacy Trumps Security: Implications of A

DE RUEHRL #1167/01 2640826
R 210826Z SEP 09

C O N F I D E N T I A L SECTION 01 OF 04 BERLIN 001167



E.O. 12958: DECL: 09/17/2019

B. 2008 BERLIN 504
C. 2008 BERLIN 354

Classified By: Global Affairs Unit Chief Don Brown for Reasons 1.4(b) a
nd (d).

1. (C) Summary: Current polling data suggest that the
Christian Democrats (CDU/CSU) and the Free Democratic Party
(FDP) could receive sufficient votes in the September 27
national elections to form a governing coalition. The FDP
are strong defenders of citizens' privacy rights and these
views have led the FDP to oppose all of Germany's recent
counterterrorism legislative proposals, as well as voice
concerns about U.S.-German and U.S.-EU information sharing
initiatives. Throughout these debates, the FDP has favored
data protection measures over the need for governments to
strengthen security-related information sharing for
counterterrorism purposes. The FDP's strong views on
individual liberties and personal privacy could lead to
complications concerning law enforcement security cooperation
and data sharing. Were the FDP to join the government, we
expect they would closely scrutinize any proposals for
security officials to access and/or share information
concerning private persons with international partners,
including the USG. End Summary.


2. (C) The FDP defines itself as a independent pro-business
party, advocating low taxes, open trade, and minimal
government intervention in business and private life. The
party promotes European liberalism, championing freedom and
individual responsibility under a government "as extensive as
necessary, and as limited as possible." The FDP's limited
government viewpoint shapes their views on counterterrorism
policy. Following the September 11 terrorist attacks and in
reaction to a number of terrorist plots uncovered in Germany,
successive German governments have passed a series of
legislative packages that have strengthened Germany's
counterterrorism legal frameworks and broadened the
investigative powers of law enforcement agencies. The FDP,
which was not a member of these post-9/11 governing
coalitions, regularly criticized these amendments for
infringing on citizens' personal privacy rights. The FDP's
criticisms of security-related data sharing agreements have
also extended to the U.S.-Germany bilateral "Pruem-like"
agreement to share personal information on serious crime and
terrorism suspects (ref C), the U.S.-EU Passenger Name
Recognition (PNR) initiative, and elements of the Visa Waiver
Program that involve sharing information on travelers.

FDP Objections to Counterterrorism Laws

3. (C) FDP parliamentarians and party leaders were strong
critics of the CDU/CSU - SPD government's introduction of two
new counterterrorism legislative proposals, the BKA Law and
the Terror Camp Law. Passed in 2008 and enacted at the
beginning of 2009, the BKA Law increased the investigative
powers of the Federal Office of Criminal Investigation (BKA).
The most controversial aspect of the BKA Law was that it
permitted security officials to use a variety of technical
surveillance measures in terrorism investigations (Ref B).
Specifically, the law provides the BKA with the power to
conduct remote, on-line investigations of the computers of
terrorism and serious crime suspects. The FDP strongly
opposed these measures as an unnecessary invasion of privacy,
despite the limitation of on-line searches to only
life-threatening situations (or threats to the constitutional
order of the German state). These cases would require a
judge's advance approval and are expected to number just a
dozen cases per year. Nevertheless, FDP parliamentarian Max
Stadler called the measures "constitutionally questionable,"
and in a meeting with EMIN, Stadler feared that authorities
would carry out surveillance without sufficient evidence of
wrongdoing. FDP parliamentarian Gisela Piltz warned that the
law would turn the BKA into a "super spy agency resembling
the FBI." Former FDP Federal Interior Minister, Gerhart
Baum, blasted the law, saying it violated privacy rights,
freedom of the press, and the inviolability of private

4. (C) Earlier this summer, the government passed legislation
developed by the Justice Ministry that criminalized a range
of terrorism-related preparatory actions such as distributing
information on bomb-making and participating in para-military
training overseas (ref A). The law was developed in response
to the September 2007 arrests in Germany of three homegrown
terrorists who had attended an Islamic Jihad Union terrorism
training camp in the Afghanistan-Pakistan border region.
Justice Ministry officials and prosecutors have told EconOffs
that the new law has closed gaps in Germany's legal framework
that had previously prevented German prosecutors from
charging German citizens and residents with activities that
directly or indirectly supported terrorist groups. Prior to
the passage of the law, the FDP criticized the draft as
unnecessary, claiming that existing legislation was
sufficient to arrest and prosecute potential terrorists in
Germany. The FDP also criticized that law for allegedly
requiring prosecutors to be able to prove that individuals
who participate in training at overseas terrorist camps
actually intend to carry out attacks; that the law would
thereby permit the punishment for thoughts, rather than for
actions. Justice Ministry officials have indicated to
EconOffs that these criticisms are unfounded hyperbole and
that prosecutors will be able to build strong cases against
those who undergo training at foreign terrorist training

FDP Objects to U.S.-German Data Sharing Agreement
--------------------------------------------- ----

5. (C) Immediately following the March 2008 completion of the
U.S.-German data sharing agreement to enhance cooperation in
preventing and combating terrorism and other serious crime
(aka, the Pruem-like agreement, Ref C), FDP parliamentarians
began to express concerns regarding the agreement. FDP
members took particular aim at an article in the agreement
that calls for additional data protection measures to be
taken if special categories of personal data (such as ethnic
origin, political opinion, religion, trade union membership,
and sexual orientation) are transferred among law enforcement
agencies. (Comment: In our discussions with FDP
parliamentarians, we explained that negotiators did not
foresee that such information would need to be transferred
regularly and that the article was inserted as a means of
providing extra data privacy protections in the rare
occurrence that such information was pertinent to an
investigation. End Comment.) In meetings with EMIN, Stadler
and Piltz also expressed objections to the data retention
periods of the agreement, questioned which USG law
enforcement agencies would have access to the information,
and voiced a general concern about potential misuse of the
personal information (names, DOBs, addresses, passport
numbers, etc.) that would be shared by the agreement. Piltz
further claimed that the U.S. government as a whole lacked
effective data protection measures in comparison to Germany
and questioned why the USG does not have a overall federal
data protection commissioner as Germany does. (Comment:
Piltz' remark underscores the importance of ensuring German
officials receive information about USG data protection
policy. The April visit to Berlin by DHS Chief Privacy
Officer Callahan was useful in this regard, but more needs to
be done to ensure German officials understand U.S. data
protection policy. End Comment.)

6. (C) FDP leaders have also taken aim at U.S.-EU agreements
that include data sharing elements. Following the July EU
GAERC decision to give the Swedish EU Presidency a mandate to
begin negotiating a successor agreement governing USG access
to the Society for Worldwide Interbank Financial
Telecommunications (SWIFT) database of financial
transactions, FDP head Guido Westerwelle called the plan
"totally unacceptable" and said that the "plan must be
stopped." Parliamentarian Piltz, who is a member of the
Bundestag Interior Committee, has criticized the U.S.-EU
Passenger Name Record (PNR) data transfer agreement for
collecting "pointless" information on travelers and she
doubts whether the information collected under PNR would be
of any value to law enforcement officials. In meetings with
EconOffs, Piltz broadly spoke of governments, particularly
that of the U.S., accumulating large amounts of data on their
(mostly) innocent citizens. Piltz expressed concerns that
German commercial interests could be damaged when U.S.
authorities obtained PNR data on German business travelers
that might somehow be shared with American competitors.

Would the FDP be a reliable security partner?

7. (C) The FDP's voting record on counterterrorism
legislation and the views of leading FDP security policy
figures described here suggest that cooperation on security
matters, particularly those involving information sharing,
with a future German government that includes the FDP could
be problematic. At times, the FDP's fixation on data privacy
and protection issues looks to have come at the expense of
the party forming responsible views on security policy. The
FDP has been out of power for over 10 years and lack
experience tackling security issues in the Internet age. The
FDP appears not to fully grasp the transnational character of
terrorism today and terrorists' increasing use of the
Internet and related technology to recruit, train and
organize. Current Interior Minister Wolfgang Schaeuble (CDU)
has repeatedly drawn attention to terrorist use of the
Internet, which he calls the "main medium of holy war against
the West - it is the communication platform, advertising
medium, distance university, training camp, think tank and
recruiting instrument for terrorists." Schaeuble understands
that combating terrorism in a globalized world requires
international cooperation and for security officials to use
modern technology. No FDP leader has displayed a similar
understanding of the need to find a proper balance between
personal freedoms and security measures; the FDP has all too
often found it politically expedient to cast these goals as
mutually exclusive.

8. (C) At election campaign rallies last week FDP Chairman
Guido Westerwelle criticized the on-line surveillance
measures contained in the BKA law and championed the FDP as
the sole party committed to data privacy and protection
issues. FDP parliamentarian Sabine
Leutheusser-Schnarrenberger has been suggested as a possible
Justice Minister in a CDU/CSU - FDP government, a job she
previously held under Chancellor Helmut Kohl (CDU). Given
that she resigned as Justice Minister in 1996 after failing
to obtain support for her rejection of a CDU proposal to
expand the state's right to monitor private citizens, we
would expect her to closely scrutinize all bilateral and
U.S.-EU information sharing proposals. In particular, a
FDP-led Justice Ministry could well complicate implementation
of the bilateral Pruem-like agreement, prevent negotiations
on a HSPD-6 terrorist screening data sharing arrangement, and
raise objections to U.S.-EU information sharing initiatives.

9. (C) An MFA official working in the counterterrorism office
noted that one reason the FDP has been so vocal in opposing
Germany's counterterrorism legislative drafts, bilateral and
U.S.-EU security initiatives is due to the fact that they are
in the opposition. Pure political considerations dictate
that the role of the opposition is to oppose the governing
coalition's proposals. Following this line of reasoning,
were the FDP to join the CDU/CSU in a governing coalition,
the responsibilities of power would perhaps convince them to
take a more constructive approach to counterterrorism and
security issues. Furthermore, given that the FDP would be
the junior partner in the coalition, we hope that CDU/CSU
leadership would ensure that German legal frameworks are
adequate and that law enforcement and security officials
continue our current close cooperation and robust information
sharing on operational matters.


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